The Canadian government announced its plans for a copyright review in December 2017, tasking the Standing Committee on Industry, Science and Technology with the review. That report has been in the drafting stage for several months and is expected before the summer. In an effort to dampen concerns that Canadian Heritage would play a diminished role in the review, the responsible ministers asked the Industry committee to ask the Heritage committee to conduct a review on remuneration models for artists and creative industries. The formal request asked the Standing Committee on Canadian Heritage to “call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.”

Rather than providing the recommendations directly to the Industry committee as requested, the Heritage committee and chair Julie Dabrusin, a Liberal MP, chose instead to release its full report today. The report, which utterly failed to comply with the request to call on a broad range of stakeholders, is the most one-sided Canadian copyright report issued in the past 15 years, largely mirroring the approach of the discredited 2004 Bulte report that was subsequently rejected by the government.

Representing little more than stenography of lobbying positions from Canadian cultural groups, the report simply adopts as recommendations a wide range of contentious proposals: copyright term extension, restricted fair dealing, increased damages, as well as several new rights and payments. There is no attempt to engage with a broad range of stakeholders, much less grapple with contrary evidence or positions.

For example, on the issue of educational issues, the report adopts the recommendations of the publishing industries, referencing contrary positions only as an afterthought (I am referenced based on my submission). The committee did not hear from many alternative perspectives, but where they did – either in person or via a submission – most are ignored. Professors Jeremy de Beer, Ariel Katz, Nick Mount, Meera Nair along with lawyer Howard Knopf and author Cory Doctorow all contributed to the process, but garnered no mention in the report other than being listed as participants.

The issue of copyright term extension provides a good illustration of the committee’s one-sided approach. By any reasonable measure, the issue of extending the term of copyright from life of the author plus 50 years to life plus 70 years is controversial. Canada suspended the extension in the revamped TPP and resisted term extension for years given ample evidence that it does not lead to new creativity but would harm access. Yet the committee recommends term extension, admitting:

No witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death.

Any report that failed to include any witnesses opposing term extension has not met with a broad range of stakeholders. In fact, the committee makes no mention of the word “balance”, only citing the term in quotes from two witnesses. The report will be trumpeted by some rights holders, but the supposed intended audience – the Industry committee conducting the copyright review – should reject it as unhelpful, one-sided, and inconsistent with its instructions.

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I agree with your analysis. I was particularly astounded by Recommendation 18 in this report, “That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.” Perhaps one could reasonably argue that the scope of fair dealing should be narrowed in certain educational contexts. While that in itself is debatable, it is not a wholly outlandish and unreasonable suggestion for someone to make. But to say that fair dealing “should not apply” would mean that researchers cannot quote, criticize, review or make ANY use of a copyrighted work that is commercially available. Academic publication and teaching would grind to a halt if those working at educational institutions cannot even quote commercially available copyrighted source material.

The very fact that such a recommendation would be made at all is proof that only those business lobbying interests expressing critical disdain for copyright limitations and exceptions like fair dealing were considered in drafting this report. Even a few seconds of thoughtful reflection about why we have fair dealing in the first place should suggest that Recommendation 18 is absurdly phrased. Where are the voices of librarians, archivists and others who preserve our heritage and need to make routine use of fair dealing to do their jobs?

I think the intent of this recommendation, at least the thrust of publishers’ concerns, is not to prevent personal use by a researcher or an educator, but to prevent wholesale industrial scale copying of material by an education “institution” not an individual.

Better phrasing might be that fair dealing for education, private study and research should not be permitted if the work is commercially available, or included in a licensing agreement. That would not prevent criticism and review, and aligns with the law in some other countries.

My preference would be “That Government of Canada amend the Act to clarify that fair dealing by educational institutions must be consistent with the Berne Convention’s three step test when the work is commercially available.” To quote this Convention, “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

This would permit reasonable quotation, commentary upon and criticism of copyrighted works for research, educational purposes or other uses without requiring a license. It would also protect the legitimate interests of rights holders. For example an instructor could not simply photocopy entire chapters from a commercially available textbook to hand out to students without paying a licensing fee for the privilege because this conflicts with the normal exploitation of the work and the legitimate interests of the copyright holder. Using the Berne three-step test to define the boundaries of fair dealing of commercially available copyrighted works (without needing a license) is a good balance for everyone concerned and is also consistent with international treaties and standards. Unfortunately the Heritage Committee’s recommendation absurdly rejects any sense of proper balance.

The issue with the Berne convention is it doesn’t balance the needs and desires of the public with the government granted rights of the license holder. Copyright is a government granted and enforced monopoly, so the entire scheme must provide a net benefit to the public. I don’t see how life +50 years (let alone the +70 year absurdity) provides any benefit to the public and benefits only a tiny fraction of creators. Personally, I’d prefer cutting back automatic copyright to 20 years, and allow registration for another 40 years max or lifetime of the creator, whichever is longer, subject to a small fee. This would put most works into the public domain in a reasonable period, and allow the creator to register copyright to give them income for their lifetime.